Snow v. Moses , 53 Me. 546 ( 1866 )

Walton, J.

This is a complaint for flowage, and the defence is an alleged payment by the defendants’ grantor, (the then owner of the mill,) to the complainant’s grantor, (the then owner of the land flowed,) of a gross snm in full for all damages, past and future, and the question is whether such a payment, if proved, will bar the complainant’s right to recover.

The right to flow lands for mill purposes is created by statute. No license or conveyance from the owner is necessary. He is entitled to compensation, but his claim being no more than a demand for money, it has been held that it may, like any other pecuniary claim, be waived, satisfied, or extinguished, by parol. Clement v. Durgin, 5 Maine, 9; Seymour v. Carter, 2 Met., 520.

But such an adjustment of damages is good only between the original parties. It will not bar the right of a subsequent owner of the laud flowed to recover damages. Fitch v. Seymour, 9 Met., 462; Seidensparger v. Spear, 17 Maine, 123.

In the last cited case, the Court say that it is so easy a thing for one, who would secure the right to flow another’s land, to obtain a deed convoying that right for such length of time, and to such height and extent as may be agreed upon, that it may be regretted that any dispensation with such a requisition should in any degree be tolerated, considering the temptations to misrepresent, or to forget what transpired in years gone by, when the whole rests merely in recollection, without being reduced to writing. The Court say that no extension of the rule should bo allowed; that it should go no further than to settle the rights of the original parties to the parol agreement, and should not be allowed to affect the title of a subsequent owner. We regard this as a decisive authority against the defence sot up in this case. The alleged payment, if proved, would constitute no bar to the complainant’s right to recover for any injury to his land since he became the owner, caused by the defendant’s flowing. Judgment for complainant. Commissioners to be appointed to appraise the damages.

Appleton, C. J., Cutting, Dickerson, Danforth and Tapley, JJ., concurred.